Modernisation of copyright law – compromise in the AGUR12 II

The copyright working group AGUR12 II concluded its work on 2 March 2017 and reached a compromise on various issues. The Federal Department of Justice and Police (FDJP) will take into consideration the results of the AGUR12 II on the revision of the Copyright Act and submit a proposal on how to proceed to the Federal Council by July 2017.

Meeting of 1 February 2017

The AGUR12 II, which was mandated in autumn by the FDJP to clarify the outstanding issues from the consultation on the revision of the Copyright Act, convened for its fourth meeting on 1 February 2017. During the gathering, it continued its discussions under the direction of the IPI – with regard to concluding its mandate in March, the follow-on work within the federal administration and the Federal Council's decision on further action.

Two internet service provider representatives (Rolf Auf der Maur, simsa; Simon Osterwalder, IG ISP) and a representative from the Federal Office of Justice (Thomas Braunschweig) will also be invited to attend the AGUR12 II meetings.

Additional AGUR12 meetings

The consultation on the modernisation of copyright law, based on a report by the AGUR12 working group, came to an end on 31 March 2016. During the consultation period, an unusually high number of 1224 comments were received, many with widely diverging stances.

Federal Councillor Simonetta Sommaruga, head of the Federal Department for Justice and Police, therefore requested on 30 August 2016 that the AGUR12 and other interested circles contribute to clarifying certain outstanding issues. The IPI will incorporate the responses of the AGUR12 in considering how to proceed further. Federal Councillor Simonetta Sommaruga has conferred the chair of the AGUR12 to the director general of the Swiss Federal Institute of Intellectual Property, Catherine Chammartin.You can find information on the Consultation here.

Modernisation of copyright

On 6 June 2014, the Federal Council dealt with the AGUR12 recommendations and mandated the FDJP to prepare a draft bill for public consultation by the end of 2015. The following parliamentary interventions are also to be taken into consideration: the Fluri Motion 13.3583 - Renumeration for authors (in German, French and Italian) and the CEAT-N Motion 14.3293 – Blank media (in German, French and Italian), as well as the parliamentary initiative 13.404 – Stop the unfair levy on blank media (in German, French and Italian).

The Luginbühl postulate 13.4083 – Resale right for Swiss artists (in German, French and Italian) will be dealt with in a separate report.

'Individual issues' meeting - Tuesday, 11 June 2013

AGUR12 considered a number of individual issues in its seventh meeting.

The following points were raised:

The creation of an inalienable right to remuneration for authors and performers in the event of a contractual transfer of copyright;

With an introduction of the above-mentioned right to remuneration, a provision analogous to Art. 332 CO regarding the transfer of works made for hire;

The creation of an unwaiverable right to remuneration for film authors and performers in the event of audiovisual works being made available over the internet;

Placing the making available of works over the internet by natural persons under collective man-agement;

The introduction of a lending right for the physical loan of works and for lending them over the internet;

Placing the making available of non-theatrical musical works over the internet under collective management;

The introduction of protection for non-individual photographs;

The improvement of legal protection through shortened and simplified procedures, through a new regulation of damage compensation and the fines system, as well as of competencies;

The creation of economic incentives to encourage licenced offers by banning advertising services and providers of internet payment services, rendering services for offers that infringe copyright, and collaborating with search machines to remove search results showing predominantly non-licenced offers in the hit list;

Raising awareness of the law in order to encourage licenced offers by implementing government support measures and a "fair paid artist" label in view of the problems concerning downloading from illegal sources;

Curbing the production of illegally created material by banning the recording of performances and presentations and by tightening the ban on circumventing technological measures;

Promoting open e-book standards;

The improvement of copyright protection for media companies.

AGUR12 remains open to further discussion of individual topics from this list in the course of drafting the final report.

AGUR12 approves the following topics for more in-depth consideration:

Drawing the line between individual and collective management;

The possible optimisation of rights management and the promotion of new business models through the bundling of rights and their (voluntary or involuntary) collective or individual manage-ment;

Contractual relationships in particular between producers of media and media companies;

Protection for media companies when using snippets and images from news aggregators.

AGUR12 was informed about the difficulties arising from the use of proprietary technical standards by companies with a strong market presence, in particular in the area of e-books.

AGUR12 decided to establish an editorial committee comprised of three members for drafting the final report.

'Enforcement of copyright law II' meeting - Wednesday, 8 May 2013

In its sixth meeting, AGUR12 dealt with the enforcement of copyright law on the internet for the second time.

The members of AGUR12 agree unanimously that business models based on copyright infringements (committed by developers of these business models or by third parties) should be actively and effectively combated, and that the operators of infrastructure, of which these business models make use, should also, within reasonable bounds, be required to provide support to the extent technically possible and legally permissible.

It was noted, however, that an effective self-regulation of providers for the combat of copyright infringements on the internet has already been set in tight parameters under currently applicable law. Hence, discussions in this meeting focused on possible legislative interventions, in contrast to the first meeting on the topic of copyright law enforcement held on 22 January 2013.

The subject of any legislative intervention - beyond those efforts already being undertaken based on currently applicable law - should be to enable the introduction of the following measures:

The issuing of alerts to users of P2P networks that seriously infringe on copyright, and civil and /or criminal prosecution in the case of repeated offences;

The obligation of hosting providers operating from Switzerland to remove, upon notification, content that infringes on copyright (there was no agreement within the AGUR12 concerning measures for preventing the re-uploading of such content and the checking of relevant lists of links);

The obligation of access providers operating from Switzerland, either upon notification or upon an order issued by the Cybercrime Coordination Unit (or a corresponding new authority similar to it), to block access, in grave cases, to sources that are obviously illegal;

To regulate the protection of the provider as well as his relevant obligations, e.g. protection against direct claims by right holders or actions for liability.

As part of the legislative preparatory work, the commensurability and financial viability of the proposed measures must, of course, also be considered.

AGUR12 does not necessarily see the focus of such legislative interventions in copyright law; such interventions could also fall under telecommunications law, data protection law or procedural law, for example.

The results of this AGUR12 meeting are explicitly conditional on the introduction of a balanced overall package encompassing all relevant topics.

In addition, AGUR12 has decided on the following approximate schedule for the drafting of its final report:

Delivery of agreed contributions by individual AGUR 12 members to the Secretariat by 15 July 2013 - these will be used as elements of the first draft.

Issue of the first draft - to be prepared and issued by the Secretariat by 5 August 2013.

Debate on the drafts to undergo progressive revision in the meetings planned for 20 August 2013, 12 September 2013, 31 October 2013 and 20 November 2013.

'Collective Rights Management' meeting - Tuesday, 16 April 2013

In its fifth meeting, AGUR12 dealt with the collective rights management of copyright and related rights.

The following issues were discussed:

The demarcation between individual and collective rights management, including the difference between 'small' and 'grand' rights;

Transparency of the collective rights management organisations with regard to collection and distribution of royalties;

A possible simplification of the tariff system, the possibility of introducing a system of tariffs based on branch sector, the involvement of users in collective rights management with respect to the obligation to pay remuneration and data on distribution of royalties, as well as the subject of swifter legal recourse;

Setting the level of remuneration distributed by the collecting societies, establishing applicable criteria (effective or potential use), the issue of multiple remunerations, statutory limitations for remuneration, and distribution among beneficiaries;

The potential for international harmonisation (including the term of protection as per Article 39 of the Copyright Act);

The de minimis principle in collective rights management;

A possible harmonisation of applicable rules with regard to related rights;

The possibility of abolishing the media levy on blank recording.

In particular the following issues remain controversial:

The calculation’s basis for determining the appropriate level of remuneration in accordance with Article 60, para. 1 of the Copyright Act;

The amount of this remuneration and its distribution among beneficiaries in accordance with Article 60, para. 2 of the Copyright Act;

The scope of international harmonisation;

Possible new regulations for private use.

AGUR12 recommends the following course of action:

A simplification of the tariff system;

An improvement in the comprehensibility and completeness of information from the collective rights management organisations;

Endeavours towards further reductions in administrative costs of the collective rights management organisations, which should be facilitated by applying simplified procedures and through increased usage of electronic administration;

A streamlining of the procedure for approving tariffs.

AGUR12 is unanimous in that:

it would not be constructive to set a statutory limitation on collective rights management organisations’ administrative costs;

the draft EU Directive on collective rights management should be examined more closely.

The members of AGUR12 are unanimous that collective rights management is justified where the exercising of individual rights (licensing) is not possible or where collective rights management offers clear advantages for all parties involved. It should therefore be discussed within the context of a realistic enforcement of regulations, which in itself is a prerequisite for a workable system for the individual management of rights.

AGUR12 has decided, in principle, to commission its Chairman (i.e. its Secretariat) to draw up a preliminary draft for the final report once the discussion on specific topics has been closed. This draft should form the basis for a cross-topic discussion and will be debated in a series of meetings following the summer holidays. It will be revised in stages with the objective of achieving consensus as far as possible, or at least to present and identify existing positions and to highlight the issues that will be decisive at policy level.

Two more meetings are planned before the summer holidays - one additional meeting on law enforcement and another that will dwell on various separate issues.

In its fourth meeting, AGUR12 dealt with the limitations and exceptions to copyright law i.e. to what extent authors, performers, publishers, producers and broadcasting organisations have to tolerate encroachment on their exclusive rights in favour of users of their works.

The following issues were discussed:

The extent of permitted private use;

The calculation of remuneration in collective rights management;

The impact of technical protection measures on exercising limitations and exceptions to copyright;

A limitation and exception for catalogues (“Katalogprivileg”) for libraries, museums, archives, collections and educational institutions;

Flat-rate model options.

The following points, in particular, remain controversial:

Whether private copying from an obvious illegal source should continue to be permitted or how it can be prevented without criminalising the internet user;

Whether the statutory guidelines in Article 60 of the Copyright Act for tariffs charged by the collective rights management organisations are still appropriate;

The extent to which individual rights management (licensing) and private copying remuneration leads to double payments by the internet user and how this could be remedied;

Whether Catch-up TV (i.e. recording of television programmes for time-shifted viewing offered by a third party) should be considered as private use and thus readily permitted subject to remuneration based on prevailing tariff rates; or whether utilisation requires the consent of the rights holder;

How Interpellation 12.4202 from Councillor of States Stöckli, as well as Postulate 12.3326 from Councillor of States Recordon and Postulate 12.3173 from National Councillor Glättli can be taken into consideration in the work.

AGUR12 recommends the following course of action:

A broadening of the use of collection and inventory catalogues held by memory institutions in the online domain;

A more in-depth discussion on the issue of delimiting individual and collective rights management, possibly differentiated according to the category of the rights holder;

A more in-depth discussion on possible measures to raise awareness, as well as warning messages when a user accesses an illegal source on the internet.

AGUR12 argued against the introduction of a specific Catch-up TV regulation, subject to new findings at a later date.

The introduction of an all-inclusive cultural flat-rate was rejected by AGUR12.

The members of AGUR12 are unanimous that all of the above issues, together with matters relating to legal enforcement and collective rights management, should be dealt with in its final report. They also agree that consensual solutions, or those that would make implementation possible at policy level, can only be found by taking a broad and balanced view and by weighing up the divergent interests involved.

AGUR12 has decided to schedule additional meetings after the summer vacation in order to allow for enough time to search for compromises and to hold consultations on the final report.

'Enforcement of copyright law' meeting - Tuesday, 22 January 2013

The AGUR12 has discussed an extensive checklist of possible measures for improving the enforcement of copyright law on the internet and consulted various experts on the subject. Among the items discussed were a possible form of self-regulation, intervention by the authorities and promoting awareness among internet users. The discussion could not yet be concluded.

'Basic principles' meeting - Wednesday, 28 November 2012

At its meeting of 28 November 2012, the AGUR12 dealt with various business models and discussed them intensively. It further addressed the issues of multiple royalty payments by consumers and the effectiveness of limitations to copyright.

It agreed that:

The internet is an opportunity for the marketing of cultural content;

Illegal offers exist on the internet and lead to distortion of competition;

Legal offers should be improved on an individual and collective level;

Illegal offers should be combated;

Awareness-raising on improving competence in terms of copyright law should be intensified.

The combat of illegal offers will be dealt with at the 3rd AGUR12 meeting ‘Law enforcement’.

The issue of the effectiveness of limitations to copyright was identified as a problem and will be discussed at the 4th AGUR12 meeting ‘Limitations and exceptions to copyright’.

The 5th AGUR12 meeting will deal with improving the collective management of copyright including the issue concerning multiple royalty payments by consumers.

Formation of a working group on copyright

On 8 August 2012, Federal Councillor Simonetta Sommaruga, Head of the Swiss Federal Department of Justice and Police, convened a working group on the optimisation of the collective management of copyright and related rights (AGUR12). She conferred chairmanship on the Director General of the Swiss Federal Institute of Intellectual Property, Roland Grossenbacher. The working group is responsible for identifying the possibilities that exist for adapting copyright law to technical developments by the end of 2013. This includes, in particular, the identification and elimination of unintentional limitations on use and impediments to competition, ensuring an appropriate remuneration for the use of copyright-protected content as well as combating piracy. In addition, the working group is also responsible for examining possibilities for increasing efficiency and reducing costs in the collective management of rights.